On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-10-3615.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 7, 2010
Before Judges Grall and Alvarez.
Tried to a jury, defendant Ishaan Whitehead was convicted of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (a lesser-included of the second-degree aggravated assault charged in count one), third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count two), and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three). The trial court dismissed count four of the indictment, fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1, on defendant's Rule 3:18-1 motion made at the close of the State's case.
Defendant was sentenced on August 8, 2008, on the second-degree possession of a weapon for an unlawful purpose as a persistent offender, N.J.S.A. 2C:44-3(a), to a discretionary extended term of fifteen years imprisonment, seven of which were subject to parole ineligibility. The court imposed a five-year concurrent sentence on the third-degree unlawful possession of a weapon and a five-year concurrent sentence on the third-degree aggravated assault. Three years of the latter five-year sentence were made parole ineligible pursuant to N.J.S.A. 2C:43-6(c).*fn1 Defendant appeals and we affirm.
The State's principal witness was Deidre Stafford. She testified that at approximately 9:30 or 10:00 p.m. on July 16, 2007, she was walking through the courtyard area of the apartment complex where she lived with her nine-year-old daughter. Although it was dark, the area was illuminated. Stafford engaged in conversation with a friend, who asked to borrow a pen. As the two continued to walk, Stafford fell a few steps behind while searching through her pocketbook. She heard a popping sound and "felt a sting." Stafford then turned around and saw defendant running past her firing a handgun. She ran into the doorway of a nearby apartment building and saw defendant return and stand near a wall.
Stafford had been acquainted with defendant and his family all of her life, as her mother and his grandmother were friends, and she grew up with his mother. She has known defendant since birth. Stafford was taken to the hospital emergency room, where the bullet, which fortunately had not penetrated into her torso, was removed. As she described it, the bullet was "stuck" in her side, "twined up" in her shirt, and "was sticking out." Stafford was discharged from the hospital that same evening after having been administered morphine for pain. She was taken to the police station to be interviewed about the incident.
During the trial, Stafford said she identified defendant as the shooter at that initial interview. A report produced by the State for the first time on the third day of trial indicated to the contrary. It stated that while at the station Stafford had been asked if she could identify the shooter, and that she had responded that she could not. She was apparently asked again, at which point she said "maybe," but was uncertain and was very nervous. Because of her morphine-induced groggy and confused state, the investigating officers ended the interview, telling Stafford they would continue the following day, July 18. Stafford testified that while at the station she was unable to answer questions, but that as she was leaving she remembered who shot her. She said she "turned around and  said, I know who shot me, it was Ishaan Whitehead, and they let me go home."
A written statement was taken from Stafford the following day at her apartment; investigators showed her a photo array from which she selected defendant's photograph. She also identified defendant in court. Although at trial Stafford said she had last seen defendant two weeks prior to the shooting, in her written statement she said she had seen defendant three or four times the week prior. At trial, as well as on the night of the shooting, defendant wore his hair in dreadlocks.
On appeal, defendant's claims of error center on the judge's interactions with defense counsel:
The trial judge's criticisms of and antagonism towards defense counsel during trial improperly communicated a prejudice against the defense, thereby denying Mr. Whitehead a fair trial. (Not raised at trial).
A. Judge's comments on defense counsel's opening.
B. Criticisms and interruptions of counsel's cross-examination.
Because none of these claims of error were raised at trial, they are subject to the plain error standard of review.
R. 2:10-2. Therefore, we must determine if the claimed error is "clearly capable of producing an unjust result." Ibid. It must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Claims of prejudicial error in the conduct of a trial judge are viewed in the context of the entire proceeding. State v. Zwillman, 112 N.J. Super. 6, 20 (App. Div. 1970), certif. denied, 57 N.J. 603 (1971). Certainly, judges possess "broad discretion" in matters relating to the manner in which a criminal case is tried but are expected to avoid the appearance of partiality in its exercise. State v. Ray, 43 N.J. 19, 25 (1964) (citing Band's Refuse Removal, Inc. v. Fair Lawn Borough, 62 N.J. Super. 522, 548 (App. Div.), certif. denied, 33 N.J. 387 (1960)). "[I]t is entirely proper for judges to ask witnesses questions to clarify their testimony," and they "may also intervene to expedite a trial and prevent delay or waste of time." State v. Taffaro, 195 N.J. 442, 450-51 (2008); see N.J.R.E. 614. The authority is constrained by the obligation to avoid any suggestion that the judge is "taking one party's side." Taffaro, supra, 195 N.J. 442, 45051 (2008); see N.J.R.E. 614. For that reason, when judges intervene in questioning a witness, they should explain that their purpose is to aid the jury's understanding, and not to extend their support to one side or the other. State v. Guido, 40 N.J. 191, 207 (1963).
In this case, defendant claims that specific comments and interventions made by the judge deprived him of his right to a fair trial and that the cumulative effect of the conduct was similarly prejudicial.
Defendant first points to the court issuing sua sponte a curative instruction after opening statements. In the instruction, the judge reiterated his prior charge that statements made by attorneys are not evidence. He focused on defense counsel's statements, which were more specific than that of the prosecutor, but mentioned the State's opening as well. Furthermore, he said:
Lastly, you heard comments about liberty being at stake and this being a very important case. Every case is important. You are the sole judges of the facts. You must not be affected or diverted by any appeals to bias, passion, prejudice, or influenced in any way by sympathy or pity. You must decide this case from the facts and the inferences which are supported by the evidence and the legal principles which I will give you.
In every respect, your judgment in this case should be considered, deliberative, objective, and it should derive its force and validity from the facts which you hear in this case and the inferences which ...